IN A strongly-worded order in a defamation case against a journalist, the Bombay High Court recently observed that “calling out someone, with fair comment and justification, is not defamation… to put it differently: to say the emperor has no clothes is not defamation, it never has been”.
Justice Gautam Patel was hearing a defamation suit filed by Lodha Developers Limited against Krishnaraj Rao, a journalist, and wife and husband Shilpi Thard and Amit Jaisingh, who had purchased two flats in Dioro — a Lodha project in Mumbai.
Describing the location, Justice Patel said: “The plaintiff has an edifice complex. It calls this complex ‘New Cuffe Parade’. It is nowhere near the old – and real – one. It is at Wadala, near the truck terminal. The appellation that Lodha has adopted is a triumph of imagination over geography. Lodha uses this moniker for its Wadala development for one reason only: it adds a cachet of desirability and is supposed to portray excellence, wealth and style. The edifice in question is named ‘Dioro’ in the usual fashion of this builder, using vaguely Italian names for all its buildings. This choice of names is neither irrelevant nor accidental. With other glossy material of a promised lifestyle, it lies at the core of the dispute: this is a case about a promise the plaintiff is said to have made, one the defendants say it has not kept, and now cannot keep.”
Between 2011 and 2012, Thard and Jaisingh had purchased two flats on the 31st floor in ‘B’ wing of Tower 5 of the Dioro building at Wadala. The flats were priced at Rs 2.37 crore and about Rs.3.5 crore. After finding several deficiencies in the construction, Thard, who had also participated in protests against the builder, approached Rao in September 2018.
After inspecting the site, Rao wrote about the issue in his blog The Brave Pedestrian, on November 12, 2018, embedding photos and videos of the site. On January 17, Lodha filed the defamation suit seeking a gag order against them.
“There is some vague mention of ‘goodwill compensation’. Lodha says it was ‘not a pittance’. It was apparently ‘without prejudice’. Lodha says it was for something it calls ‘inconvenience caused due to the work of removal of upper floors due toreduction in height of the building approved by Airports Authority of India and other such factors’. This deliberate woolliness is less than helpful… Several hundred flat purchasers, Lodha says, accepted this ‘goodwill gesture’. But not Thard. She went about ‘badmouthing’ Lodha. She ‘created a ruckus’. She sent threatening emails. She said she would take steps that would potentially harm the Lodha sales and brand,” the court noted.
Thard, in her affidavit, had stated, “There was shortfall in the carpet area. The construction was substandard. The internal walls were flimsy. There was wet sand under floor tiles. There were mineral blooms in tiling joints. Interior walls were damaged by moisture. The basements are unsafe and not properly ventilated. There was a significant fire risk.”
While Lodha had asked the court to restrain Rao from using the five claims made in his blogs and reports, Justice Patel observed, “Lodha may or may not like the use of the word ‘scam’. Courts are not here to pander to Lodha’s notions of exquisite linguistic delicacy. If indeed there is this carpet area misstatement in the agreement itself, and obviously that statement was presented by Lodha with purchasers having no say in the matter, then there may be a storm coming with other, far harsher, words looming on the horizon. The statement is not, prima facie, per se defamatory.”
Rao had told the court that applications filed by residents of the building under the Right to Information Act, were routed to Lodha by the concerned public information officer.
“Is the flat purchaser not entitled to see a sanctioned plan? An occupancy certificate? Not entitled at all to any information about the flat in which he supposed to live? Is he supposed to simply pay money and then accept whatever he is given to him without complaint? I do not see how a builder or developer offering flats for sale is any different from a manufacturer of plastic buckets or any other consumer product. There is nothing so very special about Lodha. It has no special immunity or privileges… It is no answer for the manufacturer or producer of a defective product to claim commercial secrecy, confidentiality or to shelter behind trade secrets or intellectual property protection laws,” Justice Patel observed.
Rao had posted videos about the flats on a YouTube channel. Justice Patel said, “…a statement is not to be viewed as suspicious only because it is not made in print and is made only online, or using one or more of the available modern communications channels or technologies. That new technology may have made us a noisier society. Certainly there may be something to be said about the proliferation of what is known as fake news, but that does not mean that everything about the technology is evil or undesirable.”
He added: “The only difference is that online media allows for plurality of voices. Online, everyone is a journalist, or a potential journalist. Of course, every online user is bound to the same law and the same standards. He or she runs the same risks. But that does not mean that voices must be silenced because they are online. To the contrary: it demands that we must all learn to be significantly more tolerant of opposing opinions.”